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The focus of civil lending regulation and legislative proposals Yue Caishen's content summary The basic way to solve the problem of private lending in China lies in the formation of institutional incentives through legal innovation, guiding financial resources to optimize the allocation of private lending legislation should adopt the combination of natural evolution and construction, general norms and classification norms. A multi-level legislative system combined. On the basis of the relevant legislative experience in the United States, Britain, Hong Kong and China, combined with the judicial practice of the current people's courts and the pilot situation of China's microfinance companies, the relevant laws should be amended and special legal documents should be formulated as soon as possible. The special legislation on private lending should only regulate the commercial lending behavior of those institutions and individuals who specialize in lending business, focusing on the subject access, lending rates, operating areas, lenders' sources of funds, etc. .
After more than 30 years of reform and opening up, China is changing from a capital-poor country to a capital-rich country. The scale and influence of private borrowing has rapidly expanded into a focus of social concern. In May 2010, the State Council issued a number of "Opinions on Encouraging and Guiding the Healthy Development of Private Investment" and the "Proposal on Formulating the Twelfth Five-Year Plan for National Economic and Social Development" promulgated by the CPC Central Committee in October 2010. Private capital is explicitly encouraged to enter the financial sector. Under the background of changing the mode of economic development, it is urgent to protect the legal system of private borrowing, protect the legitimate rights of private capital owners, guide the optimization of private financial resources, and enhance the endogenous driving force of economic development. This paper attempts to explore relevant disputes from the perspective of legislation and provide theoretical analysis and countermeasures for private borrowing legislation.
I. The Path and Model of Private Lending Regulations Although the legislation governing private borrowing has been discussed for many years, there are two basic problems that have not been resolved: First, which private lending should be included in the scope of legal regulation, that is, legal regulation. How to determine the boundaries of private borrowing; Second, which laws should regulate private borrowing, and whether legal texts should be formulated to standardize and regulate private borrowing. The core of the former question is how to determine the scope of regulation of private borrowing in law. The core of the latter problem is how to choose the legislative path and mode of private borrowing. How to solve these two problems determines the basic ideas, goals and systems of private lending legislation.
(1) Whether the path of selecting key regulation should formulate a legal document that specifically regulates private borrowing and how to establish a legal system to regulate private borrowing has been controversial in theory, and the legislation has always been wavering. The key to resolving this controversy lies in properly distinguishing the types and nature of private borrowing, and then selecting the corresponding legislative strategies and regulatory paths according to the different types and characteristics of private borrowing. From the legal point of view, the private borrowing is the act of the dispenser to transfer the funds for a certain period of time, and the borrower pays the principal and interest after the expiration. There are also doctrines that the transfer of ownership is transferred once the currency is delivered, that is, all principles of ownership. 1 In theory, there are many ways to divide the private borrowing. The act of transferring funds without compensation or for free for the purpose of making profits should be recognized as a civil act. The public borrowing of the general public in life is mostly civil. However, the currency circulation for the purpose of collecting interest has the function of financing, and has the nature of commercial behavior. If a natural person or legal person (a financial institution such as the banking industry is not discussed here due to special legal provisions) or an unincorporated organization will issue the payment as a business activity, it is profitable and repetitive and should be a commercial act. This multiplicity of the nature of private lending behavior not only determines the multi-level and complexity of relevant legislation, *Southwest University of Political Science and Law, teaching search, doctoral tutor.
See Liu Baoyu, Property Law, China Legal Publishing House, 2007, pp. 242-243.
It also becomes the basic basis for choosing a regulatory path.
From the perspective of the changes in the financial system, China's private lending is currently in the process of transition from the market-oriented explicit credit stage to the standardized legal credit stage, but not all forms of private credit can be or fit into the legal system to regulate, in some areas. Small-scale private lending organizations are more suitable to exist in the form of folks to meet the financing needs of different groups of people. 2 From the perspective of legislative design, it is not only difficult or necessary to establish a comprehensive regulatory legal system for private lending, and such legislative examples worldwide are extremely rare to date. Therefore, the legislation regulating private lending should not choose the path of comprehensive regulation, but should adopt the path of key regulation, that is, only certain important aspects of various private lending should be determined. According to this line of thinking, the legislative system regulating private lending should be a multi-level legislative system combining general regulation with special regulation. Under the multi-level legislative system, according to different factors such as lending behavior, borrowing subject and borrowing purpose, the mode of separate regulation by common law, relevant subject law and special private lending law is adopted. According to the structure of China's financial market and the status quo of the legal system, the special legislation regulating private lending should focus on the regulation of commercial lending by institutions and individuals that specialize in lending business, mainly including the access and lending of borrowers. Interest rates, borrowing areas, etc. are regulated. For general private lending, that is, non-specialized private lending, because it usually only involves the rights and obligations of both lenders and borrowers, it will not affect the interests of other people, and can be regulated by ordinary civil laws such as the General Principles of Civil Law and Contract Law. There is no need to introduce too much state intervention, nor do we need to enact specific laws to regulate it.
(II) Adopting the model of classification regulation For the borrowing and lending activities of institutions and individuals that are engaged in the business of lending for profit, it is not appropriate to adopt a model of comprehensive regulation by one law, but it should distinguish the legislative arrangements of classification and regulation in different situations: (1) For private equity funds, because they are different from general direct financing, the main investment areas are stocks and bonds in the securities market, rather than directly investing in the real economy or solving people's needs, so they should be included in the capital market legal system. 3(2) For cooperative funds and financial service agencies with cooperative financial nature in indirect financing, their nature and function are oriented to the mutual assistance of the people, and should be regulated by formulating a special legal system for cooperative finance, such as The Interim Provisions on the Administration of Rural Mutual Cooperatives formulated by the China Banking Regulatory Commission. With the development of urban and rural development and the integration of urban and rural economic and social integration, the legislation on cooperative finance should expand the scope of adjustment; (3) the underground banks (private banks) may accumulate high risks because they are separated from the law. Therefore, reasonable access conditions should be set, incorporated into the banking financial institution system, and formal and effective supervision should be implemented.
The China Banking Regulatory Commission issued the "Interim Provisions on the Management of Village Banks", which is roughly the same path. 4) For financial institutions that specialize in loan business and do not absorb deposits, such as financial companies and loan companies, they should be based on their nature and have a special legal system. To be regulated, such as the “Administrative Measures for Enterprise Group Finance Companies†and the “Interim Provisions on the Administration of Loan Companies†promulgated by the China Banking Regulatory Commission.
The above four kinds of private lending have special legal nature, and it is more appropriate to regulate by the relevant subject law. Special private lending legislation should not stipulate the lending behavior of these subjects. According to the method of classification and regulation, the legal norm system for regulating private lending should include three parts: (1) general civil law such as civil law general law, contract law, and non-specialized private lending behavior*2) relevant subject law, special specification Lending behavior of private lending institutions; (3) Specialized private lending laws that stipulate the lending practices of institutions and individuals that specialize in lending business for profit. The issue of private lending legislation discussed in this paper is mainly for the third part.
In the private lending legislation, the classification of private lending into civil private lending and commercial private lending based on profitability is an important basis for designing and reviewing the scientific nature of private lending legislation in China. China's current law protects private lending in the civil sense, regardless of whether it is paid or not, without violating the four-fold benchmark interest rate limit. For private lending with commercial nature, if it is not approved and registered by the statutory authority, it will be classified as an illegal financial act (such as the illegal financial business stipulated in Article 4 of the “Illegal Financial Institutions and Measures for the Prohibition of Illegal Financial Business Activitiesâ€). From this point of view, China's current law excludes and suppresses unapproved commercial private lending. Regardless of whether the lender is a natural person or a legal person or other organization, only the legal authority can obtain the legal subject qualification of commercial private lending. In general, we agree with the current law's restriction on private lending, because lending is the core business in the banking industry. See Wang Shuguang, “The Evolution of Financial Institutions in Economic Transition,†Peking University Press, 2007, p. 78.
See Chen Xiangcong, “Research on the Legislation of Private Equity Funds in Chinaâ€, People's Publishing House, 2009, p. 140.
It has a direct impact on the stability of the financial system and the entire national economic system. As of November 2010, the bank's total assets exceeded 92 trillion, 4 accounting for more than 90% of the entire financial industry assets. Most of the banking industry's revenue comes from the payment business. In order to maintain the security and stability of the financial system and ensure the smooth implementation of the central bank's monetary policy, all countries have stricter supervision over the access of banking financial institutions. In addition, the basic economic system with public ownership as the main body requires state-owned enterprises to occupy a dominant position in important areas involving national economy and people's livelihood, and conflicts with the arbitrary non-governmentalization, commercialization, and expansion of borrowing business. Therefore, in the current situation in China, the lifting of financial restraint is undoubtedly the direction of private borrowing legislation, but the determination of appropriate legal restrictions should still be the basic principle of legislation.
In distinguishing between civil private borrowing and commercial private borrowing, it should also be noted that paid and profitable are two concepts that are both interrelated and distinct. It cannot be considered as a profit-making act only because of compensation. The latter requires a continuum and professional character. The laws of most countries stipulate that ordinary civil entities occasionally engage in profit-making activities and are not commercial acts. Section 340 of the New York State Money Lenders Act clearly states that an individual or business that occasionally distributes money in the state does not need to comply with the law prohibiting unlicensed operations. In practice, the benefits of private borrowing tend to be more specialized, and some civil subjects repeatedly engage in litigation and evade supervision in the form of civil private borrowing. In fact, they are engaged in the “Measures for the Banning of Illegal Financial Institutions and Illegal Financial Business Activitiesâ€. Illegal financial business as stipulated in the article. How to regulate such behavior in law should be a key issue that must be resolved by private borrowing legislation.
Second, regarding the regulation of private lending entities, since it is not appropriate to comprehensively regulate private borrowing, then which subjects should be regulated by borrowing, which is also the focus of controversy in theory and practice, and must be solved first in legislation. A difficult point. The following two points are the most critical about this issue.
(I) Establishing a commercial lending entity access system In the current legal system, multiple levels of legal norms involve the admission of private borrowers. At the legal level, Article 90 of the General Principles of Civil Law establishes the legality of private borrowing, but does not involve the subject of private borrowing. Chapter 12 of the Contract Law stipulates the general issues of the loan contract, Articles 210 and 211 respectively. The effective time and borrowing rate of the loan contract between natural persons are specified. Article 4 of the Administrative Measures Regulations on Measures for the Prohibition of Illegal Financial Institutions and Illegal Financial Business Activities: Illegal financial business activities refer to the following activities that are carried out without the approval of the People's Bank of China: (1) illegally absorbing public deposits or disguising public deposits in disguise (2) illegal fundraising to unspecified objects in society in any name without legal approval; (3) illegal payment of goods, settlement, discounted bills, capital borrowing, trust investment, financial leasing, financing guarantee, foreign exchange trading; Other illegal financial business activities identified by the People's Bank of China. At the level of administrative regulations, Article 61 of the General Rules of Payments stipulates that enterprises must not conduct borrowing or disguised borrowing financing business in violation of state regulations. At the level of judicial interpretation, Articles 121, 122, 123, and 125 of the Supreme People's Court's Opinions on the Implementation of the General Principles of the Civil Law refer to "borrowing between citizens, production and operation between citizens." Interest rate of goods, interest-free loans between citizens." The Supreme People's Court's "Reply on How to Determine the Effect of Borrowing Behavior between Citizens and Enterprises" stipulates that borrowing between citizens and non-financial enterprises (hereinafter referred to as enterprises) belongs to private borrowing, as long as the meaning of the parties is true. If it is found to be valid, but it has one of the following circumstances, it shall be deemed invalid: (1) the enterprise illegally raises funds to the employees in the name of borrowing; (2) the enterprise illegally raises funds from the society in the name of borrowing; (3) the enterprise refers to the name of the borrowing The public distributes the purchase price; (4) other violations of laws and administrative regulations. The Supreme People's Court's "Civil Case Cases Regulations", which was implemented on April 1, 2008, divided loan contract disputes into four types according to the type of borrowing subject: (1) financial loan contract disputes; (2) inter-bank borrowing disputes; (3) corporate borrowing disputes (4) Civil borrowing disputes. On November 22, 2010, the Supreme People's Court issued the Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising, specifically explaining the application of the crime of illegally absorbing public deposits and fund-raising fraud.
According to the above-mentioned laws, regulations, administrative regulations and the judicial interpretation of the Supreme People's Court, legal private borrowing refers to borrowing between natural persons, between natural persons and legal persons, and between natural persons and other organizations. The borrowing of the nature of ordinary civil acts between natural persons is permitted by law, but commercial private lending between enterprises and with commercial nature has always been rejected by law. From the role of private borrowing and foreign countries, see Gao Chen’s legislative experience on the breakdown of total assets of banking financial institutions, commercial private borrowing can effectively overcome many shortcomings of national credit, and its rationality and legitimacy should be legal. Affirmation. 5 From the reality of our country, on the one hand, the distribution of financial institutions is uneven, and many residents in the central and western regions are difficult to enjoy the minimum financial services. According to the statistics of the China Banking Regulatory Commission, as of the end of June 2009, there were still 2,945 townships and towns in the country without banking outlets, distributed in 27 provinces (autonomous regions and municipalities), 2,367 in the western region, 287 in the central region, and 291 in the eastern region. Among them, 708 townships do not have any financial services, accounting for 24% of the total number of blank towns and towns in financial institutions, distributed in 20 provinces (autonomous regions and municipalities). On the other hand, the existing formal financial institutions do not have the ability to fully digest the financing needs of the whole society. The financing difficulties of SMEs have been plaguing China's economic and social development, and commercial private lending has occupied in rural lending. More than 20% share. From an international perspective, credit institutions are a multi-level organizational system. It is difficult for all formal financial institutions and large banks to cover all financing needs, and the risks are too concentrated. The United States, the United Kingdom, the Netherlands, South Africa, Hong Kong and other countries and regions have established a legal system to regulate private lending, promote the development of informal financial institutions from the system, and promote the construction of private credit system should also become the financial market construction in China at this stage. Important content. 8 In order to meet the needs of economic and social development, the central seven 'No. 1 documents' since 2004 have been concerned with the issue of “developing rural microfinance and microfinance services.†In May 2008, the People’s Bank of China and the China Banking Regulatory Commission jointly issued The Guiding Opinions of the Microfinance Company Pilot Program (hereinafter referred to as C Opinions) encourages and guides the provinces to actively carry out the pilot work of microfinance companies. The promulgation of the "Opinions" is a landmark event in the history of China's private finance development, which is a commercial event. The development of sex private lending provided an opportunity. In October 2007, the People’s Bank of China drafted the Lenders Regulations (hereinafter referred to as “the draftâ€) (hereinafter referred to as “the caseâ€) and submitted it to the Legislative Affairs Office of the State Council. In 2009, it was included in the second-level legislative plan of the Legislative Affairs Office of the State Council. In the aspect of market access, the Regulations allow eligible individuals to register and engage in money lending business, and stipulate that eligible enterprises and individuals can start lending business. In 2010, the People's Bank of China revised the General Rules of Loans submitted to the Legislative Affairs Office of the State Council. The draft expands the scope of lending entities and allows for non-financial companies and individuals that are not approved to be lenders.
Based on the relevant provisions of the "Opinions and Examples" and the current development status of microfinance companies, the author believes that the norms for commercial lenders can be improved from two aspects: First, the subject is determined by determining the registered funds. range. As the lender “only does not depositâ€, as a capital-intensive industry with operating currency, the registered capital should be higher than the general provisions of the “Company Law†for ordinary companies in China. The “Opinions†stipulate the registration of small loan companies of limited liability companies. The capital shall not be less than 5 million yuan, and the registered capital of the microfinance company of the company limited by shares shall not be less than 10 million yuan. We think it is appropriate. The high threshold can filter some unqualified lenders into this risk industry. It provides a barrier to the construction of the entire financial safety net. Although some states in the United States do not have high access thresholds for financial companies, 9 such as the establishment of a general financial company in California, the minimum registered capital of 250,000 US dollars, but the US market system and market restraint mechanisms are relatively mature, these companies must accept With more market constraints, it is only possible to integrate funds into the market through market channels. At present, China's market system is still not good, and it is necessary to appropriately limit the access scope of the private lending market through registered capital. Taking into account the traditional status of natural persons in the field of private lending, the status of national legislation, natural persons as the main body of lending should be determined by applying for registration. Natural persons shall bear unlimited liability according to law, and may not have capital requirements. However, when considering the qualifications of natural persons as the main body of private lending, they should consider both their withdrawal mechanism and individual bankruptcy system, and should be included in the legislative agenda as a supporting system. In the absence of a personal bankruptcy system, natural persons, as the main body of private commercial lending, cannot effectively assume unlimited liability, thus affecting the implementation effect of the private lending system.
The second is to limit the scope of the subject through the applicant qualification review method. The review of lender qualifications should pay attention to the “soft information†review of applicants and major shareholders and senior executives. Unlike ordinary industrial and commercial enterprises, the private lending industry is extremely vulnerable to criminal links, such as hiring triad organizations to collect debts, money laundering, and distribution. Usury, forced fraud transactions, etc., so you must be alert to those who are uncomfortable on the threshold (see, for example, 2, p. 74).
See Han Jun et al., China Rural Finance Survey, Shanghai Far East Publishing House, 2009, p. 224.
See Zou Dongtao, Editor-in-Chief, China's Economic Development and System Reform Report: 30 Years of China's Reform and Opening-up, Social Science Press, 2008, p. 145.
In the United States, a finance company (finance company) is a non-banking company that provides loans to individuals or businesses. It is different from commercial banks, credit unions, savings and loan associations, cooperative banks, and savings banks. Similar to China's microfinance companies, it has become the United States. The second largest source of commercial credit.
Applicants for criminal prosecutions) enter the private borrowing market. Applying for a dealership license in New York State requires a rigorous and complex “background review†process, requiring up to 11 submissions, including credit history, civil and bankruptcy proceedings over the past decade, and crime. Records (including felony, misdemeanor and violations), educational experience, etc. In addition, partner shareholders, executives, directors, etc., also need to submit a fingerprint program to review the existence of criminal records. In applying for a money lender's license in Hong Kong, the police first investigate whether the applicant has a triad background and confirm that it is "innocent" before submitting it to the court. However, it is not decided by one judge but by two citizens. A license can be issued only after the person has passed the agreement. The special legislation for private borrowing in China should focus on the extent and conditions of this aspect.
(2) Relaxing the control of lending between enterprises The effectiveness of borrowing between enterprises has been receiving much attention. According to the provisions of the "Illegal Financial Institutions and Illegal Financial Business Activities Banning Measures" and the "General Terms and Conditions", such borrowing is in the law. The above is invalid. The Supreme People's Court issued in 1996 (in the reply on how to deal with the problem of the borrower of the enterprise borrowing contract overdue without returning the loan), stipulates that the enterprise borrowing contract violates the relevant financial regulations and is an invalid contract. The China Securities Regulatory Commission and the State-owned Assets Supervision and Administration Commission jointly issued the "Notice on Regulating the Capital Exchanges between Listed Companies and Related Parties and the External Guarantees of Listed Companies" in August 2003, prohibiting listed companies from lending funds to the controlling shareholder and its related parties for compensation or for free. Therefore, in judicial practice, the court basically recognizes the borrowing or disguised loan contract between enterprises as an invalid contract. In the specific applicable law, some courts apply the provisions of Item 52 of Article 52 of the Contract Law to The contract is invalid on the grounds of harming the public interest of the society. Some courts directly apply scholars to put forward different opinions. From the perspectives of contract law and company law, the validity of the inter-company loan contract should be recognized. *From the perspective of nature, between enterprises The nature of borrowing is rather special. The company that acts as the consignor is not the subject of this business. When a company has a business relationship or an associated relationship and borrows goods, the borrowing behavior goes beyond the scope of civil private borrowing, but it does not belong to the commercial private borrowing of the business nature, but intervenes between the civil nature and the commercial nature. In response to this feature, we believe that the legislation should adopt a special normative approach, which should not be as liberal as the civil private borrowing, nor should it be set as a barrier to entry for commercial private borrowing. In the foreign legislative practice, the New York State Money Lenders Act excludes occasional lending by individuals and businesses from commercial acts, and does not need to apply for a money lender license. The value of the proposed amendments to the current law, the release of some of the borrowing between enterprises, such as upstream and downstream supplier relations, parent-subsidiary relationship and borrowing due to production needs, etc., should be stipulated as legal and effective borrowing. It is not feasible to let go of the borrowing between enterprises, and it is not advisable to let go of such borrowing to a certain extent, which is equivalent to giving up banking assets. The entry barriers to the business will inevitably affect the stability and security of the financial market and the financial system. Therefore, by leasing the partial borrowing between enterprises, the general control of the law on the borrowing between enterprises should still be retained.
Third, the restrictions on private lending interest rates are the core issue of regulating private lending. From the existing legal norms, the legality of private lending is closely related to the level of borrowing interest rates. The regulation of private lending rates determines The degree of openness of the private borrowing market and the degree of protection for private borrowing.
(1) Interest rate limit should be set. The principle of the interest rate of financial institutions (excluding urban and rural credit cooperatives) is set out in the first paragraph of Article 2 of the Notice on Adjusting the Interest Rate of Financial Institutions and Payments Announced by the People's Bank of China on October 28, 2004. The upper limit is no longer set, the interest rate of the payment is unchanged, and the lower limit of the interest rate is still 09 times of the benchmark interest rate. According to this regulation, some people think that since the bank's payment rate has no upper limit, the private borrowing rate should also be fully liberalized. In fact, the discussion on the interest rate of borrowing has been in existence for a long time, and the theory of real interest, the theory of currency interest and the political economy of Marx have different discourses. In the market, interest is the price of finance, and since it belongs to price, it must involve disputes over price control.
Even Western countries with a relatively mature market economy have always had major differences. Jeremy Bentham, a scholar who advocates the abolition of interest rate control, believes that people who are sound and sane should not object to bargaining during the payment process.
Opponents argue that his claim is entirely idealistic and has no real basis at all.
From the perspective of economic relations, the actual status of both borrowers and lenders is not equal. Lenders have a distinct advantage over consumers. Lack of bargaining power between lenders and borrowers, without the realistic basis of fair trade, relying on lenders The competition between the two to ensure that the borrower bears a reasonable interest rate has not yet formed. If there is no legal restriction, unfair trade is often generated. Historically, the legal system governing private lending rates has a long history. Tang (Miscellaneous Order) and "Ming Law" Volume 9 (Article 168 of the "Household Law" money bond section and Section 147 of the "Clear Law" volume of the 9th Shanghai Law stipulates restrictions on the interest rate of borrowing. From a cultural point of view, the interest rate restriction of private lending has a strong social appeal. The well-known opera "White-haired Girl" and Shakespeare's immortal masterpiece "Nice Merchant" have exposed the harm of usury, and even the ban is also prohibited. Description of usury. From the perspective of social development, usury has the role of the Matthew effect of “poor people getting richer and richer people getting richer†and accelerating social class differentiation. From a political point of view, usury is often one of the reasons for the replacement of dynasties in history. After the founding of New China, the elimination of usury is a landmark event in the new society.
Usury is widely practiced in areas with more developed private economies and rural areas, and the regions with less developed economies have higher interest rates on private lending. Some scholars have verified that this loan is a fuse by examining the history of private lending in China in the 1930s and the 19th century in the United States. In the course of Chongqing’s crackdown in 2009, the data disclosed by the police was: Chongqing’s loan sharks exceeded 30 billion yuan, and the scale has accounted for one-third of Chongqing’s annual fiscal revenue. The black gangs forced loans with high interest rates and then passed violence. Collecting debts and drawing huge amounts of illegal income. On August 11th, 2009, the “Economic Report†disclosed the issue of local usury with the title “Ningxia Guyuan Folk Usuryâ€.
Judging from many facts, it is of great practical significance to limit the price of funds for private lending from the interest rate setting.
From an international perspective, most states in the United States, where the market economy system is relatively mature, have also developed a special anti-profit-and-loan law. In the mid-to-late 20th century, the United States promoted financial liberalization under the influence of liberalism. Some people advocated the abolition of interest rate restrictions. Indeed, some states (such as Delaware and South Dakota) did this, but the US subprime crisis showed that Interest rate liberalization is one of the main reasons for this round of crisis, especially the adjustable rate mortgage, which has been questioned and criticized by American academics, regulatory authorities, legislative bodies and consumer protection groups.
The UK's 2006 amendment to the Shaw Fee Credit Act still imposes restrictions on the highest interest rate and authorizes the court to provide judicial relief.
Hong Kong, which has always been free to trade, has also imposed restrictions on private lending rates. Under the current conditions in China, we cannot blindly liberalize the private lending market. Instead, we should directly regulate private lending rates through legislation and set reasonable interest rates. Upper limit.
(2) Reasonably stipulating that the interest rate ceiling limits the interest rate level to the interests of both borrowers and lenders is undoubtedly the core content of the private lending system. The private lending rate is different from the government's pricing of products. The relevant legislation is not to interfere with the free negotiation rights of borrowers and lenders in the legal limit, but to prevent the lender from taking advantage of the danger or to use the dominant position to damage the legitimate interests of the borrower. Article 6 of the Court's Several Opinions on Loan Lending Cases (hereinafter referred to as “Loan Lending Opinions†stipulates: “The interest rate of private lending may be higher than the interest rate of the bank. The local people's courts may specifically grasp the actual situation in the region, but the maximum is not allowed. More than 4 times the bank's similar lending rate (including the interest rate)."
The benchmark interest rate for RMB loans of financial institutions announced by the People's Bank of China is divided into five grades according to the time limit. The interest rate of similar loans here refers to the interest rate of the same grade loans at the same time.
In the existing legislative precedent, section 24 of the Money Lenders Ordinance of the Hong Kong Special Administrative Region provides that: Any person (whether a money lender or not) will lend money or make an offer at a rate of more than 60% of the annual interest rate, ie Is a crime. Article 25 stipulates that the repayment agreement for any loan or the interest payment agreement for any loan interest, if the actual interest rate set exceeds 48% of the annual interest rate, the implementation of this article may be presumed by the fact alone. The transaction is extortionate. It can be seen that the Hong Kong region actually stipulates two different levels of interest rate restrictions, and violates different levels of interest rate restrictions to bear different legal consequences. Taiwan's Taiwan has taken a heavy profit record in preventing private lending! ! The Civil Code refers to Zhang Weihua's "American Consumer Protection Law", China Legal Publishing House, 2000 edition, 124th "Old Testament Exodus", Chapter 22, Section 25, "If you lend money to my people, that is The poor who are with you, you treat them like the people who lend money, and you must not take advantage of them."
See Chen Zhiwu's "Logic of Finance", International Culture Publishing Company, 2009 edition, No. 102, "Chongqing black-out black industry chain, high-profit loans, 1/3 of fiscal revenue", contained in the "Economics" August 24, 2009.
Article 205 stipulates that if the agreed interest rate exceeds 20% of the anniversary, the creditor has no right to claim the excess interest.
In the United States, the regulation of high-profit goods is also very complicated, mainly by state laws. Some states have adopted a more laissez-faire attitude toward interest rate controls, allowing borrowers and consignors to negotiate any interest rates, such as Delaware and South Dakota, but most states still have anti-high-profit laws that limit the highest interest rates. In state legislation that limits the maximum interest rate, the maximum interest rate limit usually depends on several factors: (1) the purpose of the payment; (2) the type of payment; (3) the type of the consignor; and (4) the payment for the specific use. The highest interest rate is usually a fixed interest rate, or it may be dependent on the floating rate of certain indices, such as the discount rate of the Federal Reserve Board. New York State’s high profit margin is usually 16% per annum; Washington State’s high profit margin is usually 12% per annum, or the first half of the Fed’s 26-week Treasury bill initial auction offer rate plus 4 points, whichever is higher. High; Mississippi's high profit margin is 10% per annum, or the federal reserve rate plus 5 points, commercial purchases above $5,000 are not subject to high-yield restrictions; Arkansas' non-consumer purchases are high-profit boundaries for the Federal Reserve The interest rate is increased by 5 points. For consumer goods, the high profit is usually set at an annual interest rate of 17%. Although the US Congress generally does not intervene in interest rate restrictions, there are exceptions, such as paying for payment, * October 2006 The US Congress has specifically passed laws that stipulate that the annual interest rate of consumer goods paid to military personnel and their dependents must not exceed 36%. Interest rates are essentially part of the profit rate. Therefore, the determination of the interest rate ceiling is highly technical in legislation, not only It is necessary to consider the yields of productive capital and consumer funds, and also need to consider factors such as the risk of the investment return itself and the implementation of the contract. Therefore, some scholars do not agree to a certain interest rate limit. * For high-profit standards, if the regulations are too high, the purpose of fair protection of borrowers will not be achieved. After the average social profit rate, the repayment of the goods objectively has credit. risk. Excessive interest rates may also induce moral hazard. Some borrowers may take risks in repaying their purchases and engage in illegal profits. On the other hand, if the standard for high-profit goods is too low, there may be two consequences: First, the borrower does not have enough credit in the market, and there is a shortage of credit supply; second, the private borrowing from the ground Turning underground, the actual interest rate may rise further to compensate for the cost of legal risks. From the perspective of real experience, the possibility of the second situation is even greater. The underground money house that exists widely in China is a good example. The judicial interpretation of the Supreme People's Court limits the interest rate to no more than four times the benchmark interest rate set by the People's Bank of China. According to the one-year interest rate determined by the People's Bank of China, the four-fold limit is about 21-25%, which is converted into a private interest rate. About 2-3 points. With the increase in interest rates by the People's Bank of China, the four-fold limit may reach around 30%. According to the actual situation of private borrowing in China, the private borrowing rate is generally between 2 and 5, and the productive borrowing of more than 3 is a relatively high interest rate. If it is an overnight loan or a borrowing within a few days, the interest rate converted into a monthly interest rate will be significantly higher than the above level.当然，地区ã€å£èŠ‚ã€è´§å¸æ”¿ç–åŠæ³•å®šåŸºå‡†åˆ©çŽ‡æ°´å¹³ç‰å› ç´ ï¼Œéƒ½ä¼šå¯¹æ°‘é—´å€Ÿè´§çš„å…·ä½“åˆ©çŽ‡äº§ç”Ÿå½±å“。例如2008年执行从紧的货å¸æ”¿ç–，导致å„地民间借货利率水涨船高。å¦å¤–，通货膨胀对利率的走势也有é‡è¦å½±å“ã€‚å› æ¤ï¼Œä¸Šè¿°å› ç´ éƒ½åº”åœ¨ç¡®å®šæ°‘é—´å€Ÿè´§åˆ©çŽ‡ä¸Šé™æ—¶äºˆä»¥è€ƒè™‘。
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从美国和香港的ç»éªŒæ¥çœ‹ï¼Œåˆ©ç”¨åˆ‘事手段打击高利贷是其共åŒçš„立法选择。香港地区åšå€ºäººæ¡ä¾‹ã€‹è®¾å®šäº†ä¸¤ä¸ªé«˜åˆ©è´·ç•Œé™ï¼Œå¯¹äºŽä¸åŒå±‚次的高利贷规定ä¸åŒæ€§è´¨çš„法律责任。è¿å该æ¡ä¾‹ç¬¬24æ¡ï¼ˆå¹´æ¯60%的实际利率），å³å±žçŠ¯ç½ªï¼Œä»»ä½•è´·æ¬¾çš„还款å议或关于任何贷款利æ¯çš„付æ¯å议，以åŠå°±è¯¥å议或贷款而æ供的ä¿è¯ï¼Œä¸å¾—予以强制执行。æ¤å¤–，任何人犯本æ¡æ‰€è®¢ç½ªè¡ŒU）年第82å·ç¬¬33æ¡ä¿®è®¢ï¼‰ã€‚相比较1994年之å‰çš„文本，修订åŽçš„æ¡ä¾‹å¤§å¹…æ高第24æ¡æ‰€è§„定的最高惩罚é™åº¦ï¼Œç”±æœ€é«˜â€œç›‘ç¦ä¸¤å¹´å’Œç½šæ¬¾10万元â€å¢žè‡³æœ€é«˜â€œç›‘ç¦10年和罚款500万元â€ã€‚2001年至2005å¹´æœŸé—´ï¼Œé¦™æ¸¯æ ¹æ®ã€Šæ”¾å€ºäººæ¡ä¾‹ã€‹ç¬¬24æ¡å°±é«˜åˆ©è´·æ出检控的个案数目分别为26件ã€18件ã€1件ã€28件åŠ10件。è¿å该æ¡ä¾‹ç¬¬25æ¡è§„定（å³æ‰€è®¢çš„实际利率超逾年æ¯48%），å•å‡è¯¥äº‹å®žå³å¯æŽ¨å®šè¯¥å®—交易属敲诈性。在香港ç¦æ¢é«˜åˆ©çŽ‡æ”¾å€ºçš„åŒå±‚法律规制架构ä¸ï¼ŒæŠŠåˆ©çŽ‡ç®¡åˆ¶æ°´å¹³åˆ†åˆ«å®šä¸ºå¹´åˆ©çŽ‡60%å’Œ48%，是香港当时良好的商业惯例和其它å¸æ³•ç®¡è¾–区（例如英国）的法例而决定的。香港特区政府认为从执法的角度而言，第24æ¡å¤§ä½“上å¯æœ‰æ•ˆé€¼æ¢åœ¨é¦™æ¸¯è¿›è¡Œçš„高利贷活动。*åœ¨ç¾Žå›½ï¼Œå›½ä¼šè®¤ä¸ºå…¶æ ¹æ®ã€Šå®ªæ³•ã€‹ç¬¬ä¸€ç« 第八节“州际贸易æ¡æ¬¾â€æœ‰æƒç›‘管ç§äººäº¤æ˜“ä¸çš„利率问题，但美国国会并没有划定高利贷的具体范围，而是通过〈å犯罪组织侵蚀åˆæ³•ç»„织法》界定了å„州层é¢ï¼Œè¿å州高利贷法的法律åŽæžœé€šå¸¸å…·æœ‰æƒ©ç½šæ€§ï¼Œå³å¤„罚金é¢è¶…过所收å–的利率与高利贷之差。
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